James Farmer

Legal Commentary

Happiness, Living a Balanced Life and Legal Practice - Part II

Thursday, August 15, 2013

I wrote and published on this site on 9 January 2012 (during the annual vacation) a piece with the title “Happiness, Living a Balanced Life and Legal Practice”. I knew this was a topic that all lawyers are interested in and knew also that most lawyers pursue their careers with a sense of achievement and satisfaction but accompanied by continuing stress. Most talk of a balanced life but seldom achieve it, usually justifying that failure with a belief that it is not possible to achieve success without enormous personal sacrifice in terms of other activities and family life.

The piece that I wrote therefore attracted a lot of attention and also recriminations and accusations of hypocrisy on my part, still working at 100 miles an hour, it is said, all year round. Even my self-proclaimed hobbies and non-legal pursuits – yacht racing, running, classic car collection – were not exactly of the variety of relaxing pursuits such as reading, golfing, film going, fishing or gardening. In my defence, I did indeed confess that in the case of yachting what had started out with a cruising yacht to “get away from work” quickly transformed into building a series of racing yachts, yacht racing and a directorship of Team New Zealand and America’s Cup Race Management, all of which generate stress. However, the other 2 activities referred to remain great and diverting pastimes. Unlike my good friend Alan Galbraith QC, I have long since given up competing in running events, veteran or otherwise, and am content to leave my marathon record where it is. (Now the Targa Rally later this year is an altogether different proposition.) And car collection involves endless internet exploration and dialogue with 2 of my sons on the merits of different classic models.

So, given my interest in a balanced legal life, my attention was drawn naturally to a recently published book called “Michael Kirby, Law, Love and Life”, a biography of the well known Australian Judge, written by Daryl Dellora and published by Penguin Books.

It is unlikely that there is a lawyer in either Australia or New Zealand who does not know of Michael Kirby. Many will have heard him speak at conferences and some will have appeared before him as counsel either when he was President of the New South Wales Court of Appeal or, as he later became, a Judge of the High Court. I appeared before him in the former Court when I was at the Sydney Bar and can confirm the comment made in the book that, as President, he introduced a more relaxed atmosphere in that Court.

One hearing that I recall particularly well was one in which Murray Gleeson exercised his prerogative as (then) Chief Justice of New South Wales to preside in Kirby’s own Court with the latter sitting as one of the wing men. Gleeson had been sworn in as Chief Justice only that morning and so his first case as a Judge was in the Court of Appeal hearing a civil case. There was, I felt at the time (no doubt wrongly), an element of the new Chief Justice making it plain to the Court of Appeal President who the boss was. The book reveals that Kirby and Gleeson had known each other well at Sydney Law School and of course they were later to serve together on the Australian High Court, with Gleeson once again as Chief Justice of that Court.

One cannot read Dellora’s biography of Kirby without coming to the realisation (if one didn’t already know) that, by any standards, Kirby is and has been a remarkable lawyer and Judge. Any practising lawyer who reads Court Judgments will also know that. His Judgments are of a different character from most and reflect a wider view of the law than one normally finds in judicial reasoning. One example (out of many) that impressed me particularly was his Judgment in State Rail Authority of NSW v. Earthline Constructions Pty. Ltd. (1999) 160 ALR 588 (HCA), in which, when considering the extent to which trial Judges should take account of a witness’s demeanour when assessing credibility, he referred to the works of experimental psychologists which demonstrated how dangerous it was to determine credibility based on a witness’s demeanour alone. He made the points (only obvious once stated) that “demeanour is, in part, driven by culture” and perception of demeanour may “be affected by stereotypes held by the decision-maker”: “Distaste or prejudice”, he said, “can cloud evaluation”. Having had experience myself of clients and witnesses, in some cases of considerable education and commercial experience, whose nervousness in the unfamiliar and hostile environment of the witness box had given a (wrong) impression of evasive and untruthful testimony, I thought Kirby had made an important statement, the validity of which was backed up by learning in other disciplines.

A key to Kirby’s reluctance to be bound by precedent is also found in this case from his citation from the Judgment of Sir Thomas Bingham MR in R. v. Ministry of Defence, ex parte Smith [1996] QB 517 (CA) at 554: “A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z”. Kirby added: “We must ever be on our guard that we have not reached the new time without noticing it.”

One also learns from the book (again if one didn’t already know it) that Kirby was, during his Judicial years and before that when he was President of the newly established Australian Law Reform Commission, a workaholic. Not just a workaholic but a workaholic to an extent seldom seen. Clearly a man driven by a deep intellectual interest in the law and in the issues of the day in which law had a role to play. As the book also reveals, a man driven also by ambition, resented by many of his colleagues at the Bar and on the Bench and described variously as the great self-promoter and the great dissenter. The latter label was one that irked him but possibly less than the realisation that his increasing isolation on the Australian High Court from the views of his fellow Judges might render his long-term influence on legal thinking less than he would wish.

A theme of the book, reflected in the word “Love” in its title, is Kirby’s homosexuality and his enduring, 40 year partnership with Johan van Vloten. For many years, this relationship was kept hidden, initially justified by the fact that homosexual acts for a long time were the subject of the criminal law in New South Wales. Increasingly, Kirby spoke out on the issues of discrimination against gays and the scourge of AIDS. Ultimately but very late in his career Kirby “came out” and publicly acknowledged his partner, which must have been a matter of great happiness to van Vloten.

A sad feature of the book and of Michael Kirby’s life is however revealed in the final chapter “Citizen Kirby”, an account of his life after his retirement from the High Court in 2009. The book says that: “Michael Kirby was the first to admit that he had a problem with his work-life balance, but he was the last to ever seriously do anything about it”. Johan had clearly hoped that Kirby’s retirement would enable them to holiday and do more things together. But as Dellora records the facts:

“There was so much [Johan] had hoped the two of them could do together after Michael’s retirement. They both loved travel; there were plays and films to see – Johan couldn’t say when they had last attended something at the Opera House. It had been thirty-five years since Michael and Johan’s second kombi trip – the last time they had a real holiday together. Johan wondered when Michael was going to stop thinking only about number one and realise that there were more important things in the world than the next book review or committee meeting. Who knew how much longer either of them would be around for – surely it was time to give something back to Johan? But Michael was incredibly stubborn. He professed concern about his work-life balance but the truth was that he was never going to really retire until they took him out in a pine box. It was an attitude that hurt the person he loved most.”

It is hard to comment on those words. One can only admire the Judge, the lawyer, the humanitarian, who continued to discover new causes, such as animal rights, even after his “retirement”. But one can also see his life as illustrative of the reasons why lawyers do need to find, in whatever way possible, a balance between dedication to the Law and living a life that enables one to see and keep the Law in context. As was famously said by Lord Steyn in R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 (HL) at 548: “In law context is everything”. It is clear that Michael Kirby, as a Judge, was successful in placing law in a broader social and political context that almost any Judge before him. It is clear also that that was not achieved by working the ordinary hours of Judges and lawyers which, by the standards of the community, are themselves extraordinary. But perhaps, if Dellora’s book is accurate, Kirby has failed to observe the broader context of life. As lawyers, we all have an obligation to the Law, both as an ideal and as a practical regulatory instrument. That obligation should surely be tempered, however, by the obligation that we owe to ourselves as individuals not to become slaves to our careers, to our own personal cost and to the personal cost of others.

Having uttered those fine words, I fully expect a repeat of the rebukes that I received after Part I of this theme.

Jim Farmer
14 August 2012

Georgia Racing

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